England and Wales Family Court Decisions (other Judges)

 

 

Case No: LS14C00265

 

IN THE FAMILY COURT SITTING IN LEEDS

 

IN THE MATTER OF THE CHILDREN ACT 1989 AND THE ADOPTION AND CHILDREN ACT 2002

 

AND IN THE MATTER OF J (A CHILD)

 

Date: 17 October 2014

 

Before :

 

HHJ Lynch

 

 

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Between :

 

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Helen Benson for the Applicant

Keith Kershaw for the 1^st Respondent

Claire Linden for the 2^nd Respondent

 

Hearing date: 17.10.14

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JUDGMENT

 

 

 

 

 

Introduction and Background

1. In these proceedings I am concerned for J (aged three months). She is the second child of X (the mother) and Y (the father). Y does not have parental responsibility for J, not being named on her birth certificate and he has not sought to become a party, despite having weekly contact with her.
2. The local authority began care proceedings soon after J was born as this court had only concluded care proceedings regarding her older sister, B, three weeks earlier. In those proceedings the local authority had concerns regarding X’s chaotic lifestyle and lack of stability as well as B being exposed to domestic violence in her parents’ relationship. There were concerns about Y’s volatility and violence, also his heavy cannabis use and involvement in criminal behaviour. In brief in those proceedings I was satisfied that B had suffered harm and would be at risk of harm if returned to the care of either of her parents and I made both care and placement orders in respect of B.
3. Returning to J’s proceedings, an interim care order was made at the first hearing on 13 August and has been in place ever since. Given that I had so recently concluded the proceedings regarding B, the local authority agreed over a relatively short period of time to see if there was reason to hope X could make the necessary changes to care for J, such that it would be worth extending these proceedings and delaying decisions for J.
4. Following the local authority issuing placement proceedings after the assessment concluded negatively, I have been invited to conclude matters at today’s hearing which was listed as an issues resolution hearing in respect of the care proceedings. Normally I would have adjourned for the placement application to be served on X but her solicitor today told me she was expecting today to be the final hearing and had not been expected to attend. This is a difficult time for her, having recently had a final contact with B who is hopefully to be matched with prospective adopters next month. He did not feel it would be of assistance to X to delay to a further hearing, for which of course the application would have to be served on her, when it would again be unlikely she would attend. She has given her solicitors clear instructions not to offer any active opposition to the making of the final orders, not because she does not love her daughter but because she understands what is going to happen. In those circumstances I agreed that there was no value in further adjourning these proceedings and I propose to consider all applications today.

Threshold

5. X has been able to agree that when this case was begun threshold had been crossed on the basis of the findings I made in July regarding her older sister. In that case I found that at the time protective measures were taken B had suffered emotional harm and neglect as a result of :

o   being exposed to the relationship between her parents, which is characterised by domestic violence;

o   having lived at twelve different addresses in nine months, including following her mother being evicted from two refuges and one private tenancy, and as a consequence having been provided with a stable and secure home by her mother;

o   the chaotic and unstable lifestyle of her mother;

o   her mother failing to engage and co-operate with professional agencies, including the health visitor to address concerns in relation to B’s weight gain;

o   the parents having colluded in staying together overnight in breach of an agreement, having resumed their relationship some months ago and having concealed this from the local authority;

o   the ongoing and regular drug use by her father.

In J’s case I am satisfied that, at the time the proceedings commenced, if she had been placed in the care of either of her parents it is likely she would have suffered significant harm in the form of emotional harm and neglect.

The Issues and the Evidence

6. In preparing for this hearing I have read the full bundle of papers provided to me in this matter. X has taken the very difficult step of not challenging the local authority’s plan for adoption, understanding that the orders I would make were inevitable given the negative assessment of her. She has been able to accept that much of what the local authority has said regarding her lack of change and continued engagement with Y is true. This therefore has not been a contested hearing but I have chosen to give fuller reasons than might be necessary for a reason I shall come back to at the conclusion of this judgment.
7. The local authority seeks both a care and placement order in respect of J. The local authority has completed its assessment of X although it has had little to work with as she failed to go to one of the two appointments which were arranged and walked out of the other. The local authority submits X has been unable to demonstrate sufficient change since the last proceedings. There continue to be concerns about her chaotic lifestyle and she has not been at her home when the social workers have visited. She has some ongoing links with Y and has called the police out several times for support. Y has not chosen to put himself forward to care for J and has not been assessed, although there is no reason for me to think his situation is any different to the previous hearing in July. The local authority therefore invites me to say that adoption is the only option for J in the absence of any possible family placements, no family members having sought to be assessed and indeed the maternal family having withdrawn from supporting X. The guardian, who was also B’s guardian, supports the local authority’s plan and I have considered her report carefully.
8. The decision I am going to have to make in respect of J relies significantly on the evidence I considered in B’s proceedings. I prepared a full written judgment in that case and have decided to reproduce here my analysis of the evidence that was before me. The next section therefore in bold is taken from that previous judgment, the paragraph numbers having changed slightly from that judgment as I have decided to keep them sequential in this judgment.

The Position of the Professionals regarding X

9. The local authority and guardian rely upon the parenting assessments of the parents carried out by Gail Whiting and a colleague. Looking first at the assessment of X, she did not engage fully with this assessment as she failed to attend three out of the five sessions. Although the assessment was negative overall, the social worker noted positives as it was clear there was a good and loving attachment between B and her mother and contact sessions were of good quality.
10. Looking at X’s own history, when she was fourteen her relationship with her parents became strained, as her parents did not agree with her lifestyle choices and struggled to manage her behaviour. She ended up leaving the family home to go and live with her sister who suffered from drug and alcohol issues. X received limited parental guidance and not experienced much stability or security, which would have inevitably impacted upon her ability to parent well herself.
11. The parents began their relationship when X was sixteen and Y thirteen and X moved in with Y and his mother. The local authority had concerns about Y’s welfare in the care of his mother due to him being exposed to domestic violence, heavy cannabis use by Y and his mother, as well as violence in the parents’ relationship.
12. The relationship between the parents, and their inability to end that, has been a key concern for the local authority. In the assessments both of the parents accepted the relationship had been abusive. X said they would argue every other day, which was often hurtful verbal abuse. She spoke of Y having been violent towards her four or five times, although she did not consider pushing or being pinned against a wall as being violent. X minimised the level of violence stating “it was only now and again” and “it wasn’t too bad most of the time”. She also acknowledged B would have seen their arguments and fights. She recognised that she had prioritised Y’s needs over B’s, in order to prevent him becoming violent. She could not however grasp the impact witnessing this would have had on B.
13. X acknowledged she had failed in the past to separate from Y, despite having been given assistance to do so. During the assessment, carried out in the latter part of last year, she claimed to have separated from Y in September. It is now known that their relationship in fact never actually ended, despite what the social worker was told.
14. During the assessment, it was recognised X would need support and she was referred to agencies, including a self-esteem group. Her engagement with those groups was very limited. She also lived in a refuge at one point with B but failed take up support offered there, instead going out to see friends. Ms Whiting acknowledged that X had in the last two months engaged with her support worker from Women’s Health Matters and had begun courses including in respect of self-esteem and domestic abuse within relationships. I noticed in X's position statement she spoke of beginning a parenting course around 11 June, about two weeks ago.
15. Another concern brought out in the assessment was X’s transient and often chaotic lifestyle. Since leaving her parents’ home she has lived with numerous individuals, both before and after B’s birth. X was unable to accept the concerns regarding her transient lifestyle. The local authority assisted X in obtaining her own tenancy but she never made the property habitable nor did she move in, continuing to live with friends. Ms Whiting conceded in her evidence X had very recently obtained a property with support from the local authority and had moved in. I noted however when she filed her position statement at the end of May she was still living with the paternal grandmother.
16. At the end of the assessment, the workers identified all the strengths and concerns in respect of X. The conclusion was that B should not return to the care of her mother. Ms Whiting recommended that X would benefit from completing a parenting course, work around domestic violence awareness, and also engaging with counselling to deal with her experiences in her teenage years and experiences of violence. A self-esteem course would assist in increasing her confidence and to limit her vulnerability in future relationships.

The Position of the Professionals regarding Y

17. The local authority also assessed Y, after he became involved in the court proceedings in January, extremely late in the day. The assessment was a PAMS assessment as Y has some learning difficulties as well as having a diagnosis of ADHD.
18. The social worker in her evidence accepted that, when looking at parenting skills, Y had engaged well with the parenting manual during the assessment and was able to demonstrate a good knowledge of practical basic parenting tasks. He could verbalise how B might be affected by things going on around her, looking back to his own childhood. He said were B with him or her mother he would ensure there was no violence or cannabis use around B. The social worker also accepted in her assessment and in her oral evidence that there was positive interaction seen in Y’s contact with B.
19. Looking at Y’s own experience of being parented, it is clear from the assessment there were many concerns. There had been a worrying level of exposure to drugs throughout his life, his mother, father and possibly his paternal grandmother being involved. Y has used cannabis since he was thirteen, alongside his mother, historically to a high level although the social worker is aware he is working with his youth offending worker to reduce his level of consumption. In the past he has been offered support from a local drugs service but has not engaged with this.
20. Y also when growing up witnessed serious violence between his mother and her ex-partner and was himself the subject of two periods of child protection planning. When discussing the violence in his relationship with X, he was open about this. He said it had begun when he discovered she had been unfaithful. He admitted punching X in the stomach before she was pregnant and that the rest of the time he hit her in the face. Y reported to the social worker getting irritated by little things and needing to let his anger out by punching or kicking. In the parenting assessment he was able to consider his own experiences of exposure to domestic violence and how this could have impacted upon him. He also acknowledged that B’s exposure to violence was not right and that if she were exposed to violence all her life she may think this were normal and be violent herself. I note this specifically because he has been unable to provide instructions to his barrister to accept that threshold was crossed but seems to have done so in discussions with the social worker.
21. The social worker was clear about the potential of harm to B from Y. He was advised to access various courses for anger management but has not done so until more recently as required under his probation order. He has a significant history of offending behaviour and is currently involved with the Youth Offending Service. Y was last given a community order on 28.11.13 for assaulting his mother. I note he also has a conviction for assault of X.
22. Looking at the relationship between the parents, during the assessment Y admitted that he continued to speak with X and had done so throughout the court proceedings, although he said she was likely to deny this. He described secretly meeting X all the time although said they had not been in a sexual relationship. This was in contrast to X who continued to deny to the social worker that she and Y were in a relationship. What has since become clear is that they must have continued an intimate relationship as X is pregnant by Y and is due to give birth at the end of this month. When asked about possibly being pregnant, X denied this until late in March, when she would have been around five months pregnant. At that point the parents said they wished to resume their relationship and be assessed together to care for the unborn child and acknowledged they were residing with the paternal grandmother.
23. The assessment of Y concluded negatively, the social worker deciding that his diagnosis, his offending behaviour, his heavy drug use, his lack of addressing of his difficulties, meant B would be likely to come to harm if placed in the care of her father. The social worker conceded in her evidence since that assessment concluded Y had begun to make some changes due to his work with the youth offending team but this was very much in the early stages and did not make her feel it would be right to delay decisions to assess him any further. This position was endorsed by the guardian who said B needed permanence now and could not wait any longer to see if her father could make and maintain change.

The Position of X

24. The parents oppose the position taken by the professionals. X, to her credit, was able to come to court yesterday and take a pragmatic approach to the case. She was very clear that she loved her daughter dearly and wanted to care for her. She had begun to make changes very recently which she felt was positive but she understood that I had to look at matters in a timescale that was right for B. She therefore very bravely did not oppose my making a care order which must have been incredibly hard for her. I am satisfied she did this because she saw that what she wanted was not what was best for B, something very few parents manage. Quite understandably she did not agree to me making a care order but did not challenge the evidence and left the decision to me.
25. In terms of the current situation between the parents, when I asked Ms Aldred on behalf of her client I was told the relationship was at an end. The explanation was that Y's engagement had waned over the past weeks as X’s engagement with agencies had improved. When the social worker gave evidence she phrased it slightly differently, saying that X had said that morning that she was thinking of ending the relationship. I noted that at the time of X's position statement, filed at the end of May, that the parents still lived in the same property and, in X's words, “remain on amicable terms”. She also said in her position statement that she would wish to be considered as a sole carer for B whilst maintaining an amicable but arms length relationship with Y and spoke of not wanting her care of her children to be jeopardised by “cohabitating fully”. It certainly seems to me that if the relationship has indeed ended it is extremely recent and I am not at all confident Y knows of the ending of it or accepts that.
26. X did oppose my making a placement order. Her argument was that the involvement of a psychologist from the local authority with B meant that I could not say adoption was in B's best interests. She invited me either to adjourn proceedings while that piece of work was done or to dismiss the local authority's application entirely.

The Position of Y

27. Y chose not to attend court for this final hearing. His explanation through counsel was that he had to take his paternal grandmother to hospital in the absence of his father. I do not believe this had been communicated to anyone prior to yesterday's hearing commencing. I was also very conscious he had failed to become involved in these proceedings for the first three months. Likewise he has failed to give any instruction to his solicitors for some time and two dates for the filing of his statement have come and gone. Ms Withyman on his behalf invited me to adjourn proceedings for him to have a further opportunity to attend but I refused that application. I am quite clear Y has not put his daughter first and she cannot wait until he can find the time or the inclination to commit himself to her court case.
28. Ms Withyman told me that Y did not accept the negative assessment of him. He accepted the violence in his relationship with X although he would say this was not in B's presence. He accepts ongoing use of cannabis although says he has cut down and is seeing a drugs worker as part of his probation requirement. He accepted he had colluded in keeping from the social worker the fact he was staying with X overnight in breach of an agreement. He would have supported the maternal grandparents caring for his daughter or indeed X doing so but if not he would want to care for her himself. His view was that he was now capable of doing so. Through the youth offending work he was attending a course in domestic violence issues and anger management and planned to go to college. He felt he had begun to turn his life around and wanted the court to adjourn proceedings on that basis. He was very clear he strongly opposed the making of a placement order, saying that B was attached to her parents.

The Legal Framework

29. Returning then to J’s case, I now turn to consider what orders if any are in her best interests. It is a given that, wherever possible, children should be brought up by their natural parents and if not by other members of their family. The state should not interfere in family life so as to separate children from their families unless it has been demonstrated to be both necessary and proportionate and that no other less radical form of order would achieve the essential aim of promoting their welfare. In Re B [2013] UKSC 33 the Supreme Court emphasised this, reminding us such orders are “very extreme”, and should only be made when “necessary” for the protection of the child’s interests, “when nothing else will do”. The court “must never lose sight of the fact that (the child’s) interests include being brought up by her natural family, ideally her parents, or at least one of them” and adoption “should only be contemplated as a last resort”.
30. In reaching my decision I have taken into account that J’s welfare throughout her life is my paramount consideration and also the need to make the least interventionist order possible. I have to consider the Article 8 rights of the adults and J as any decision I make today will inevitably involve an interference with the right to respect to family life. I am very conscious that any orders I go on to make must be in accordance with law, necessary for the protection of J’s rights and be proportionate. I am also conscious that I must have in mind the general principle that any delay in determining J’s future is likely to prejudice her welfare.
31. A placement order is sought by the local authority in respect of J. The court cannot make a placement order unless all parents with parental responsibility (here just X) have consented or the court is satisfied that the parents’ consent should be dispensed with. A court cannot dispense with a parent’s consent unless either the parent cannot be found, or lacks capacity to give consent, or the welfare of the child “requires” consent to be dispensed with. In that context I am conscious that “requires” means what is demanded rather than what is merely optional.

Decision

32. I have to ask myself whether J should be placed with either of her parents or whether she should be adopted. I have to balance the pros and cons of each of the options being presented to me. In addressing this task I have considered all the points in the welfare checklists contained in both the Children Act 1989 and the Adoption and Children Act 2002. I am not going to carry out a particularly detailed analysis of the checklists however given X’s acceptance of the plans and Y’s lack of involvement.
33. When I look at the factors I must consider it is clear J needs a permanent secure home where all her needs, those of any small baby, will be met. Given the lack of change in the parents since B’s proceedings concluded in the summer sadly I have to conclude neither of them could meet her needs. Were she to be placed with either of them she would be at risk of suffering harm in the way her sister did. There is no alternative then to the plan of adoption.
34. Clearly J will be affected throughout her life as a result of having ceased to be a member of her birth family and becoming an adopted person. She will lose her relationship with her mother and her father and indeed her extended family on both sides. As I have already said, those are relationships one would wish to maintain if at all possible for a child but they cannot outweigh her need for a secure and permanent home for the rest of her life. A plan of adoption means that hopefully she will be able to have contact with her big sister assuming they are both adopted. B’s particular emotional needs mean that the professionals do not think attempts should be made to place the girls together. This is very sad as one would always want siblings to grow up together but given my knowledge of B’s situation I accept this is the right decision here. It is good to know that B will hopefully soon be matched with adopters and given J’s age I am sure she will be quickly placed. I very much hope then the girls can grow up having the best possible relationship as we know that sibling relationships are the most long lasting.
35. In this case, having carried out the balancing exercise that I must, I am satisfied that there is no realistic prospect of J being placed with either of her parents, and that her needs for stability and permanence can only be met in an adoptive placement. I am satisfied that the local authority’s final care plan is proportionate and (in the context of both s1(1) Children Act 1989 and s1(2) Adoption and Children Act 2002) in her best welfare interests. I therefore make a care order. Having also concluded that J’s welfare requires me to dispense with her mother’s consent to placing her for adoption, the word “require” here again having the Strasbourg meaning of necessary, “the connotation of the imperative”, I therefore make a placement order authorising the local authority to place J for adoption.
36. There is one further direction I wish to make. I think it is hugely important for children who are adopted that they have information available to them, through their adoptive parents, so they can make sense of their early life. I also want J to know that despite wanting to care for her very much her mother was able to make a brave decision, enabling her to have the best possible future and at the earliest opportunity. This judgment, in setting out what I have read and heard in court, gives at least a summary of the information I have considered when making my decision. Whilst it will be placed in an anonymised form in the public domain it is important that it is easily available to those who will be bringing J up and indeed it was for this reason I have prepared a full written judgment. I propose therefore to make a direction that this judgment must be provided by the local authority to J’s adopters so that it is available to her in future life.
37. I also make an order for public funding assessment for all the respondents in this matter.